United States v. Gomez , 716 F.3d 1 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-1372
UNITED STATES,
Appellee,
v.
CLARVEE GOMEZ, a/k/a Tony,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.
Robert E. Toone, with whom Foley Hoag LLP was on brief, for
appellant.
Daniel C. Taylor, Attorney, U.S. Department of Justice, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
May 3, 2013
LYNCH, Chief Judge. Clarvee Gomez was convicted by a
jury of conspiracy to distribute 500 grams or more of cocaine. He
was sentenced by the court to a ten-year mandatory minimum term of
imprisonment under 21 U.S.C. § 841(b)(1)(A)(ii), based on the
court's finding that the crime involved eight kilograms of cocaine.
He challenges both his conviction and sentence.
Gomez's primary argument as to his conviction is that the
denial of his motion to suppress evidence seized from him in
Lawrence, Massachusetts when he left the scene of a drug deal was
error because probable cause was lacking. We disagree. His
primary argument as to sentencing is that the ten-year mandatory
minimum sentence, triggered by five kilograms or more of cocaine,
offends Apprendi v. New Jersey, 530 U.S. 466 (2000), where the jury
found his offense involved only 500 grams or more of cocaine and no
greater amount was charged in the indictment. We have already
rejected the sentencing argument.1 See United States v. Goodine,
326 F.3d 26, 32 (1st Cir. 2003); United States v. Eirby, 262 F.3d
31, 38-39 (1st Cir. 2001). We affirm.
I.
How we view the facts depends on the claim asserted.
Gomez does not claim that, if the indictment encompassed all of the
conduct for which there was proof at trial, the evidence did not
1
The viability of this precedent may be called into question
by the Supreme Court's upcoming decision in Alleyne v. United
States, No. 11-9335 (argued Jan. 14, 2013).
-2-
support his conviction. He makes the more limited claim that
evidence of a particular transaction was outside the scope of the
conspiracy charged in the indictment. That presents a question of
evidentiary sufficiency. See United States v. Perez-Ruiz, 353 F.3d
1, 7 (1st Cir. 2003). As to the issue of probable cause, we review
the court's factual findings supporting a conclusion as to probable
cause for clear error and its legal conclusion de novo. United
States v. Camacho, 661 F.3d 718, 723-24 (1st Cir. 2011).
A. The August-September 2008 Drug Transaction Involving
Gomez, a Confidential Informant, and Pena
This case involved both Gomez and his co-defendant Juan
Pena-Rosario, and interactions in Orlando, Florida and Lawrence,
Massachusetts. In the summer of 2008, Gomez, who was based in the
Boston area, was put in touch with a DEA confidential informant
("CI") located in Orlando, Florida because Gomez wanted to buy
large quantities of cocaine suitable for distribution.
On August 6, 2008, the CI recorded his telephone
conversation with Gomez. Gomez said that he knew people in Boston
who were "ready to deal with high quantities" of cocaine, that the
prices in Boston "are sky high right now," and that his people in
Boston "don't mind paying up the money." Gomez wanted to "talk it
over" with the CI to "[s]et the price. . . . a really good price,
to pay for everything, the trip and everything." In other
conversations, the CI told Gomez that if he wanted the CI not only
to sell him cocaine but also to transport it to Massachusetts,
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Gomez would have to pay extra for transportation at a rate of a
thousand dollars per kilogram of cocaine.
Less than a month later, Gomez drove from Massachusetts
to Orlando to meet with the CI. The CI met with Gomez on August
28, 2008, and following DEA instructions, wore a body microphone
during the meeting. Gomez and the CI discussed the logistics of
the CI transporting the cocaine to Massachusetts, and the CI showed
Gomez seven kilograms of cocaine (which an undercover DEA agent had
brought to the meeting place). Gomez cut into one of the cocaine
packages with a knife, rubbed the cocaine on his fingers, tasted
it, and declared that it was "good" and "really pure." Gomez then
confirmed that "you're bringing me seven, right?" and "[i]t's
seven, right?" -- meaning that the CI would bring Gomez seven
kilograms of cocaine. The CI agreed. Gomez gave the CI $7000 in
cash to pay for transporting the seven kilograms of cocaine to
Massachusetts.
Again following DEA instructions, the CI arranged another
meeting with Gomez on September 2, 2008 at a Chili's Restaurant in
Lowell, Massachusetts, where the CI was to give the seven kilograms
of cocaine to Gomez in exchange for money. The CI again wore a
body microphone during the meeting.
Agents conducting surveillance of the meeting saw a black
BMW X5 SUV pull into the parking lot of the restaurant; they
recognized this car as belonging to Juan Pena-Rosario, whom they
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had been investigating as a cocaine distributor since 2006. Pena
was driving the black SUV. During the meeting, Gomez told the CI
that "his guy was outside" the restaurant and at some point left
the restaurant to meet him. Agents watching the meeting from
outside saw Gomez leave the restaurant and talk to Pena for five
minutes. So the agents there knew of a connection between Gomez
and Pena.
After returning to the restaurant, Gomez urged the CI to
"front him" the seven kilograms of cocaine, meaning give him the
cocaine without payment on the understanding that Gomez would pay
later. The CI refused to accept this arrangement, and Gomez would
not agree to pay for the cocaine up front. The deal did not go
through.
B. The December 2008 Drug Transaction Involving Gomez and
Pena-Rosario, and the Ensuing Search of Gomez
Gomez's argument as to the alleged lack of probable cause
turns largely on the next transaction by Gomez, in Lawrence,
Massachusetts. On September 29, 2008, DEA agents initiated
wiretaps on two cell phones being used by Pena, and they continued
monitoring his phone calls through December of 2008.
On December 11, 2008, agents intercepted a series of
phone calls beginning at 5:55 p.m. between Pena and Individual No.
1. His identity at the time was unknown to agents, but they later
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learned it was Gomez.2 Individual No. 1 called Pena. Using
language frequently used by drug dealers to refer to drug
transactions, Pena and Individual No. 1 set up what agents
listening to the call believed to be a drug deal for Individual No.
1 to provide Pena with one kilogram of cocaine that night. They
talked about meeting later that evening and Pena told Individual
No. 1 to be ready.
At 6:44 p.m., Pena spoke over the phone with a second
unknown individual, Individual No. 2, different from the first
individual from whom Pena had arranged to obtain the cocaine. Pena
told Individual No. 2 to "get ready" because "the girl is ready."
"Girl" is common code among drug dealers for a kilogram of cocaine,
and agents interpreted these conversations to mean that Pena was
talking to a customer for the kilogram of cocaine Pena would obtain
that evening.
At 7:20 p.m., Individual No. 1 called Pena back and asked
him what time they were meeting. Pena told Individual No. 1 to be
on stand-by because he was still waiting to hear back from his
customer.
Individual No. 2 called Pena back at 8:32 p.m., telling
him to call the supplier and move ahead. Individual No. 2 asked
Pena to obtain the "girl" as soon as possible. Pena told this
2
Because the officers did not know before Gomez's arrest that
he was the speaker, that later-acquired knowledge is not
considered. See Sibron v. New York, 392 U.S. 40, 63 (1968).
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second individual that "they have it," said he would "get in touch
with them," and then said he was "going to go over there to see
them," making it likely that he planned to meet with more than one
individual.
At 8:51 p.m., Pena spoke with Individual No. 1 over the
telephone and asked, "Where are we going to eat?" Agents
interpreted this to mean, "Where are we going to consummate the
deal?" Individual No. 1 responded, "Do you know where the karate
school is, on 620 Essex?" and said "I'm here right now," "on the
third floor." Pena agreed to meet there.
At that point, the surveillance team tracking Pena split
into two groups, one of which followed Pena's car while the other
group went directly to 620 Essex Street in Lawrence, Massachusetts.
620 Essex Street is a four-story brick building where approximately
seven businesses are located, including a karate studio on the
third floor.
At about 9:10 p.m., agents saw a gray Dodge arrive at 620
Essex Street; a single male whom the agents did not recognize left
the Dodge and entered the building. At about 9:15 p.m. -- about
twenty minutes after Pena and Individual No. 1 arranged to meet at
620 Essex Street -- agents observed Pena arrive at 620 Essex Street
in his black BMW SUV, park it, and meet an individual whom the
agents did not recognize in the doorway of the building. Pena
entered the building with that individual and walked up the stairs.
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About five or six minutes later, agents saw Pena leave the
building, get in his car, and drive away. About ten to fifteen
minutes after Pena left, agents saw three individuals whom they did
not recognize leave 620 Essex Street, get into the Dodge, and drive
away. During the approximately thirty minutes that agents watched
620 Essex Street, no one entered or left the building other than
Pena and these three individuals.
One team of agents followed Pena and arrested him when he
reached his apartment complex. A search of Pena revealed a
kilogram of cocaine stuffed into the waistband of his pants, as
well as a cell phone whose number matched the number Pena used in
the wiretapped phone calls to set up the drug transaction earlier
that night.
Another team had followed the Dodge as it left 620 Essex
Street. This team stopped the Dodge when it was told cocaine had
been found on Pena. Officers pulled the Dodge over, and found
Gomez sitting in the rear passenger seat. Each of the three
passengers in the vehicle was searched, and the search of Gomez
recovered a cell phone, a wallet, and a set of keys. Law
enforcement agents later examined the phone and found that its
number matched the number of Individual No. 1, whom Pena had spoken
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to earlier that night. Gomez's wallet also contained a business
card; written on it was the phone number of the CI from Florida.3
II.
Gomez and Pena were indicted on one count of conspiracy
to possess with intent to distribute cocaine under 21 U.S.C. § 846:
From a date unknown to the Grand Jury, but from at least
in or about September, 2008, and continuing thereafter
until at least December 11, 2008, in the District of
Massachusetts and elsewhere, [the defendants] herein, did
knowingly and intentionally combine, conspire,
confederate, and agree with each other and other persons
unknown to the Grand Jury, to possess with intent to
distribute cocaine.
The indictment "alleged that the offense . . . involved at least
500 grams of a mixture and substance containing a detectable amount
of cocaine. . . . Accordingly, Title 21, United States Code,
Section 841(b)(1)(B)(ii) applies to this Count." Pena, but not
Gomez, was also charged with possession of cocaine with intent to
distribute, and aiding and abetting the same, in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2. On December 8, 2009, Pena
pled guilty to both counts.
Gomez did not plead guilty, and he filed a motion to
suppress all evidence recovered after the December 11, 2008 search
of him, arguing that he was arrested and searched without a warrant
3
Although the government was aware of the prior association
of Pena and Gomez from the failed September 2 transaction, that
played no role in the probable cause determination.
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or probable cause. The district court denied the motion,
explaining that:
[T]he agents did have sufficient information to give them
probable cause to arrest Gomez. Based on the intercepted
coded phone conversations, they reasonably believed that
Pena-Rosario planned to meet a group of individuals at
620 Essex Street and purchase cocaine from them. Gomez
was an occupant of a car that arrived at 620 Essex Street
shortly before Pena-Rosario arrived and had left shortly
after Pena-Rosario had exited the building. This meeting
occurred at approximately 9:15 p.m., a time when one
would expect the four-story office building to be empty.
Although these facts did not definitively prove that
Gomez was involved in criminal activity, they provided
the agents sufficient grounds to believe that Gomez had
committed a criminal offense.
Gomez also moved to exclude evidence regarding the
meetings between Gomez and the CI in August and September of 2008,
on the ground that this evidence was "not relevant to this
indictment." The district court denied Gomez's motion without
prejudice to raising the issue again during trial; when raised at
trial, the court overruled Gomez's objection and allowed the
evidence to be introduced.
Near the end of the five-day jury trial, the government
submitted two different jury verdict forms to the court, one of
which asked the jury to make findings as to two different drug-
quantity thresholds -- either 500 grams or more, or five kilograms
or more, of a mixture or substance containing cocaine -- while the
other only asked the jury to determine whether the offense involved
500 grams or more of a mixture or substance containing cocaine.
Gomez opposed use of the first verdict form on the ground that
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"[t]he indictment charges 500 grams or more"; the court agreed and
used the second form. The jury then found Gomez guilty of
conspiracy to possess with intent to distribute cocaine in
violation of 21 U.S.C. § 846, and found that "the offense involved
at least 500 grams or more of a mixture and substance containing a
detectable amount of cocaine."
At Gomez's March 8, 2012 sentencing, the government
argued that eight kilograms of cocaine were attributable to Gomez,
triggering a mandatory minimum sentence of ten years pursuant to 21
U.S.C. § 841(b)(1)(A)(ii). Gomez argued that because the
indictment only charged him with, and the jury only found him
responsible for, an offense involving 500 grams or more of cocaine,
the appropriate mandatory minimum sentence was only five years
pursuant to § 841(b)(1)(B)(ii).
The court found "that the weight is eight kilograms" and
imposed "a minimum mandatory sentence of 120 months." Gomez timely
appealed the district court's judgment.
III.
On appeal, Gomez alleges two errors in the admission of
evidence against him at trial, and two errors at sentencing.
A. Alleged Errors at Trial
1. Evidence Regarding the Florida Transaction
Gomez argues that the August-September 2008 phone calls
and meetings between Gomez and the CI in Florida and Massachusetts
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were outside the scope of the charged conspiracy, and that
introducing evidence concerning these events constituted a
prejudicial variance. We review this claim de novo, see United
States v. Rivera-Donate, 682 F.3d 120, 128 n.7 (1st Cir. 2012),
considering "whether a variance occurred and, if so, whether that
variance prejudiced [the defendant's] substantial rights," id. at
128 (quoting Perez-Ruiz, 353 F.3d at 7). To determine whether the
government proved that the conduct in question was part of the
charged conspiracy, we "apply[] the typical framework for the
review of sufficiency challenges in criminal cases." Id. There
was no variance here.
The indictment charged that the conspiracy took place
"[f]rom a date unknown to the Grand Jury, but from at least in or
about September, 2008, and continuing thereafter until at least
December 11, 2008, in the District of Massachusetts and elsewhere."
This language is broad enough to include not only Gomez's meeting
with the CI in Lowell, Massachusetts in September of 2008, but the
related events occurring in Florida in August of 2008.
Moreover, there was evidence sufficient for a jury to
conclude that the August-September 2008 transaction and the
December 2008 transaction were part of the same conspiracy. There
was evidence that both transactions: (1) served a common goal,
i.e., supplying Pena with cocaine; (2) were mutually
interdependent, inasmuch as a jury could have found that the second
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transaction took place because the first transaction, which was
meant to supply Pena with cocaine, fell through; and (3) involved
overlapping participants, namely Gomez and Pena. See United States
v. Dellosantos, 649 F.3d 109, 117 (1st Cir. 2011). There was no
variance, and no error in the admission of evidence concerning the
planned drug deal between Gomez and the CI.
2. The Court's Probable Cause Determination as to
the Denial of the Motion to Suppress the Cell
Phone and Wallet Seized During the Search After
the Karate School Transaction
We review the court's factual findings for clear error
and its legal conclusion as to probable cause de novo. See
Camacho, 661 F.3d at 723-24. We determine whether an arrest was
supported by probable cause using a "totality of the circumstances"
standard, United States v. Reyes, 225 F.3d 71, 75 (1st Cir. 2000)
(quoting United States v. Torres-Maldonado, 14 F.3d 95, 105 (1st
Cir. 1994)), under which "the government bears the burden of
establishing that, at the time of the arrest, the facts and
circumstances known to the arresting officers were sufficient to
warrant a reasonable person in believing that the individual had
committed or was committing a crime," id.Gomez first argues that the district court clearly erred
in finding that "one would expect the four-story office building
[at 620 Essex Street] to be empty" at 9:15 p.m., when Pena and the
three individuals who later left together in the Dodge were in the
building. We need not resolve this claim. The parties stipulated
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below that while agents watched 620 Essex Street -- a period of
about a half-hour -- no one entered or left the building other than
Pena and the three individuals, and together with the court's other
unchallenged findings, this is enough to support the court's legal
conclusion as to probable cause.
Law enforcement agents had learned from Pena's wiretapped
conversations that he was going to meet with his cocaine suppliers
at 620 Essex Street on the evening of December 11, 2008. The
agents reasonably believed that Pena would purchase a kilogram of
cocaine at this meeting based on the code used by Pena and the
conversations with Individual No. 1, with whom he arranged the
meeting over the phone to get the cocaine, and Individual No. 2, to
whom Pena intended to sell the drugs. Agents watched Pena arrive
at 620 Essex Street about twenty minutes after the final phone call
between Pena and Individual No. 1 and, after staying in the
building for only a few minutes, leave. Soon thereafter, and
before arresting Gomez, the agents discovered one kilogram of
cocaine on Pena. Based on this information, the agents had
probable cause to believe that Pena obtained a kilogram of cocaine
while at 620 Essex Street.
Agents also learned from the wiretapped conversations
that Individual No. 1, with whom Pena arranged the meeting, was
already at the "karate school" on the third floor of the building
at 620 Essex Street as of 8:51 p.m. Agents set up surveillance at
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620 Essex Street immediately thereafter, and saw (1) an unknown man
arrive at the building in a gray Dodge Avenger; (2) Pena arrive at
the building, meet with an unknown man, walk up the stairs, and
then leave the building after a few minutes; and (3) three unknown
men leave soon after Pena in the gray Dodge. Whether or not the
agents thus had probable cause to believe that the three men that
left in the Dodge included the individuals from whom Pena had
arranged to buy a kilogram of cocaine, they did have probable cause
when, in addition, they arrested Pena and found him with the
cocaine.4
Gomez's main argument on appeal is that even if there was
probable cause to arrest and search Pena, this did not translate
into probable cause to arrest Gomez. Gomez says that as far as
agents then knew, he was just in the wrong place at the wrong time.
After all, agents did not then know that Gomez was the person with
whom Pena had arranged the meeting. Gomez quotes Ybarra v.
Illinois, 444 U.S. 85, 91 (1979), for the proposition that "a
person's mere propinquity to others independently suspected of
criminal activity does not, without more, give rise to probable
4
No one else entered or left 620 Essex Street during the
half-hour that agents watched the building; two of the men who left
in the Dodge were present in the building when agents began
surveillance, just as Individual No. 1 said he would be; the three
men left in a group, consonant with Pena's statement that he would
be meeting more than one person; and the Dodge arrived at the
building immediately before Pena's arrival, and left with the three
men soon after his departure.
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cause to search that person." But agents did not arrest Gomez
based merely on his proximity to other persons suspected of
criminal activity; rather, he was arrested based on the strong
likelihood that he himself had participated in this activity.
Agents reasonably believed, based on the wiretapped
conversations and the search of Pena, that Pena had met with a
group of individuals at 620 Essex Street and bought a kilogram of
cocaine from them. They also reasonably believed that the three
individuals who left in the Dodge were this group, and Gomez was
among these three individuals. Furthermore, "criminals rarely
welcome innocent persons as witnesses to serious crimes and rarely
seek to perpetrate felonies before larger-than-necessary
audiences." United States v. Martinez-Molina, 64 F.3d 719, 729
(1st Cir. 1995). The private nature of drug deals involving the
purchase of large quantities of cocaine appropriate for
distribution only bolstered the already strong likelihood that all
three individuals leaving in the Dodge had participated in the drug
transaction that had occurred.
The facts of this case are similar to United States v.
Sepulveda, 102 F.3d 1313 (1st Cir. 1996), where we upheld a finding
of probable cause to arrest and search the defendant where he had
been present as his co-defendant sold drugs. Id. at 1315-16. The
facts here actually support probable cause even more strongly than
in Sepulveda, as agents here had specific information that caused
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them to reasonably believe that all three individuals leaving in
the Dodge had been involved in the selling of cocaine to Pena
together. In contrast, the cases that Gomez cites in support of
his argument are distinguishable. We list the main cases on which
he relies. See, e.g., Sibron v. New York, 392 U.S. 40, 62-63
(1968) (no probable cause where defendant observed talking with
known narcotics addicts, but agents had no specific reason to
believe criminal activity had occurred or that defendant had
participated in that activity); United States v. Valentine, 539
F.3d 88, 93-95 (2nd Cir. 2008) (no probable cause where defendant
present and associating with other men at apartment building where
controlled buy was to take place, but agents had no reason to
believe there were any participants in controlled buy other than
intended purchaser); United States v. Collins, 427 F.3d 688, 690-93
(9th Cir. 2005) (no probable cause where defendant arrived in
parking lot at time agents expected co-defendant to receive stolen
checks, but another individual separately arrived at same time, all
individuals remained visible at all times, and defendant did not
interact with co-defendant); United States v. Ingrao, 897 F.2d 860,
862-65 (7th Cir. 1990) (no probable cause where defendant, while
carrying a black bag, walked between two buildings while a
suspected drug transaction occurred out of one of the houses, which
belonged to a known drug trafficker, but agents had no reason to
believe defendant had been in trafficker's house); United States v.
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Everroad, 704 F.2d 403, 405-07 (8th Cir. 1983) (no probable cause
where defendant seen accompanying co-defendant, who had arranged
drug deal with undercover officer, but defendant not present during
any drug deal or conversation about drugs); United States v.
Ceballos, 654 F.2d 177, 179-180, 185-86 (2d Cir. 1981) (no probable
cause where defendant seen entering residence of suspected drug
dealer and leaving with brown paper bag, but agents had no specific
reason to believe criminal activity had occurred while defendant in
residence); United States v. Chadwick, 532 F.2d 773, 784-85 (1st
Cir. 1976) (no probable cause where defendant met co-defendants at
train station and loaded footlocker suspected of containing
marijuana into car, but agents had no reason to believe defendant
knew contents of footlocker).
The claims of trial error fail.
B. Alleged Errors at Sentencing
1. The Court's Imposition of a Mandatory Minimum
Sentence Based on Its Quantity Findings
Gomez argues that his mandatory minimum sentence of ten
years was imposed in violation of Apprendi v. New Jersey, 530 U.S.
466, since the mandatory minimum was based on the court's findings
as to drug quantity.
Gomez acknowledges that we have rejected this argument
before, in United States v. Goodine, 326 F.3d 26, where we held
that "drug quantity for purposes of § 841 is a sentencing factor
that may be determined by a preponderance of the evidence," so that
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"a judge's determination of drug quantity can influence the
mandatory minimum sentence imposed." Id. at 32. Gomez notes,
however, that our holding in Goodine relied on Harris v. United
States, 536 U.S. 545 (2002), and that the Supreme Court recently
heard oral argument on whether Harris should be overruled. See
Alleyne v. United States, No. 11-9335 (argued Jan. 14, 2013).
Gomez urges that we should withhold decision in this appeal until
Alleyne is decided. We decline to do so. Under controlling First
Circuit and Supreme Court precedent, the district court did not err
in sentencing Gomez to a mandatory minimum sentence based on the
court's findings as to drug quantity.
In any event, any error was harmless, since the "evidence
overwhelmingly establishe[d] the minimum drug quantity needed to
justify" Gomez's sentence, here five kilograms of cocaine, where
Gomez repeatedly tried to buy seven kilograms for him to resell.
United States v. Soto-Beníquez, 356 F.3d 1, 46 (1st Cir. 2004).
2. Notice as to the Mandatory Minimum Sentence
Finally, Gomez argues that because the indictment against
him specified only that 21 U.S.C. § 841(b)(1)(B)(ii) applied to the
count against him, the court erred by sentencing him pursuant to
§ 841(b)(1)(A)(ii), which imposes a ten-year mandatory minimum for
offenses involving five kilograms or more of cocaine.
We have examined this exact issue before, in United
States v. Eirby, 262 F.3d 31, and there explained that since "[t]he
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specification of a penalty provision for the underlying offense
[is] . . . not essential to the validity of the conspiracy count,"
a "court's use of section 841(b)(1)(A) rather than section
841(b)(1)(B) . . . [does] not usurp the prerogative of the grand
jury." Id. at 38. We also explained in Eirby that "the switch to
section 841(b)(1)(A) [does] not constitute reversible error unless
it deprived the appellant of notice or otherwise misled him to his
detriment." Id. At least as of the time the district court denied
Gomez's motion to exclude evidence pertaining to the August-
September 2008 transaction, Gomez was put on ample notice that he
would be held responsible for the drug quantities involved in both
that transaction and the December 2008 transaction if convicted.
The court did not err in sentencing Gomez pursuant to a statutory
provision not specified in the indictment.
IV.
Gomez's conviction and sentence are affirmed.
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